155 N.W. 41 | N.D. | 1915
Appellant sought relief in the lower court from a judgment taken against him by default. The record on this appeal presents a review of the decision of the lower court upon this issue. The matter has been here before. An opinion upon practice questions was written in Harris v. Hassin, found in 30 N. D. 33, 151 N. W. 4. Therein a remand was ordered, and the case is now here upon the former record, supplemented by the depositions of the county judge and clerk of the county court, since taken, and certain affidavits. All questions of law involved have been heretofore settled in this jurisdiction.
It can be assumed, for the purpose of this decision, that the particular continuance in question had was taken to May 5th, 1914, instead of May 8th, as contended by appellant. Briefly recited, the facts are that the case was at issue on the pleadings, and had been set on peremptory call for trial for March 12th, 1914, upon which date a continuance was granted to April 8th to enable the deposition of the defendant to be taken and be presented. On April 8th a postponement was asked by the plaintiff and concurred in by the defendant, who requested and secured a further continuance to April 22d, because the defendant’s deposition had not arrived. This deposition arrived before April 22d. Plaintiff filed written objections thereto on said date, and which objections were well taken, and necessitated defendant either going to 'trial without the deposition and his defense on the merits, or his obtaining a further continuance to enable the retaking of said deposition in proper form. Defendant thereupon applied for a third continuance, and was granted it upon his payment of $25 terms, which was paid in open court, and the case was orally declared to be continued. The date to which this continuance was granted, or understood to have been granted, is the all-important circumstance. The
It is almost elementary that this is a review of the exercise of the discretion of the lower court, and its denial of the application to be relieved from the default. It is an oft-adjudicated principle that it is only for a manifest abuse of such discretion exercised that the decision of the lower tribunal will be disturbed. Racine-Sattley Mfg. Co. v. Pavlicek, 21 N. D. 222, 130 N. W. 228, and cases there reviewed. Under the record this court has before it all facts and circumstances known by the lower court, and is in a position to pass upon the issues presented, as advantageously as was that court, and for an abuse of discretion must reverse. Wannemacher v. Vance, 23 N. D. 634, 138 N. W. 3. It is also true that “the exercise of the court’s discretion on such an application should tend in a reasonable degree to bring about a
There is no question of sufficiency of an affidavit of merits involved.The case was previously at issue on the merits, and no affidavit of merit was therefore necessary. All that was incumbent upon the defendant was to excuse by affidavit, or otherwise, the default, if any, in appearance for trial. Respondent argues that the reopening of the case would serve no good purpose, because the merits were indirectly before the-trial court and passed upon, inasmuch as the deposition of the defendant stating the facts and constituting the evidence of his defense was on-file in the ease, and as such was considered by the court in the nature of an affidavit of merit. Or, in the language of counsel’s brief, the deposition and defense “was before the trial court in toto when it was considering the motion for relief in question, in lieu of the usual affidavit of merits,” and “that under the circumstances and for the purpose of such motion the court was justified in assuming that such deposition contained the defendant’s whole defense. That there is no claim or intimation that it did not. And from the evidence of both parties thus before it the court could and did, in effect, conclude definitely that its decision would probably not be different upon another hearing, and that no legitimate purpose, therefore, would be served by granting such hearing. Its conclusion in that regard cannot well be challenged, for the trial court would, in any event, be a judge of the facts,” a jury trial having been waived by failure to demand the same. The answer to these contentions is that the merits were in no wise before the court as upon a trial of fact. While the court might scan the deposition to determine that the defense interposed was in good faith, and not a frivolous one, and perhaps as bearing upon, if it did at all, the reason for the default, the court could not further than this pass upon the merits as upon a trial on the merits. As no affidavit of merits was necessary, it is difficult to- understand ho-w the deposition could be used on the contrary theory. It is equally hard to understand by what right the plaintiff could assume that-the deposition of the defendant as a
It is therefore ordered that the default judgment taken and entered against defendant be set aside and a trial be granted upon the merits. Appellant will recover costs and disbursements on this appeal.